This is
a Social Security disability appeal. Plaintiff Lisa Swift was
injured in three workplace incidents, one in March 2012 and
two in October 2013, that eventually caused her to stop
working as a teacher for Easter Seals. She alleges that she
continues to experience pain, mostly in her back but also in
her hands, legs, and neck (the problems being more on the
right side). One limitation is that she cannot sit for more
than 10 to 15 minutes at a time. She also suffers from Stage
III kidney disease and migraines, and takes pain medication.

Plaintiff
has been treated or examined by various doctors. After the
incidents, she was treated for a while by doctors at
Physicians Immediate Care. She received injections from Dr.
Dahlberg, a pain management specialist, who believed that
plaintiff had a sciatic nerve injury or perhaps a piriformis
muscle injury suffered when she backed into the corner of a
desk to avoid an agitated student. Plaintiff was treated by
Rockford Nephrology Associates for her stage III kidney
failure. Throughout this period, plaintiff was treated by her
primary care physician, Dr. Timothy Flynn, who opined that
plaintiff's medical problems, in combination, would
prevent her from working.

Plaintiff
was also examined, on two occasions, by Dr. Jesse Butler, who
was hired by plaintiff's former employer to perform an
“independent medical examination” as part of a
pending worker's compensation case that later settled. In
his two reports, Dr. Butler painted a dramatically different
picture than did Dr. Flynn. Dr. Butler concluded that
plaintiff was malingering (i.e. engaging in
“symptom magnification”), was abusing narcotics,
and was “manipulating different providers to obtain
narcotics.” R. 613. He stated that the only treatment
she should receive was being sent to “a narcotic detox
program.” Id. In addition to the sharply
contrasting opinions of Dr. Flynn and Dr. Butler, there was
also an opinion from Dr. Reynaldo Gotanco, a State agency
physician, who opined that plaintiff could do light work. No.
impartial expert was called at the administrative hearing to
adjudicate among these opinions.

On
August15, 2016, the administrative law judge
(“ALJ”) issued a 9-page decision finding
plaintiff not disabled. At Step Two, the ALJ found that
plaintiff had the following severe impairments:
“obesity, degenerative disc disease of the lumbar
spine, stage III chronic kidney disease, headaches and
hypertension.” R. 22. But the ALJ concluded that
plaintiff was nonetheless capable of light work based on the
following findings: (i) plaintiff made several inconsistent
statements; (ii) the objective medical evidence, such as
negative straight leg raising tests, did not provide
“strong support” for her allegations; (iii) she
had not been “referred for surgical intervention”
or gone to the emergency room; and (iv) there was a treatment
gap of approximately six months at one point. As for the
medical opinions, the ALJ gave “great weight” to
Dr. Gotanco's opinion, “some weight” to Dr.
Butler's opinion, and “little weight” to Dr.
Flynn's opinion.[2]

Plaintiff's
main argument for remand is that the ALJ gave Dr. Flynn's
opinion too little weight and Dr. Butler's too much
weight. Additionally, plaintiff argues that the ALJ
cherry-picked the record, engaged in doctor playing, and
failed to follow the treating physician rule. The Court finds
that these arguments collectively justify a remand.

A few
general observations should be noted at the outset. First, it
is undisputed that the ALJ did not follow the procedures
required by the treating physician rule. This Court has often
remanded for not explicitly applying the two-step treating
physician rule, in particular the six checklist factors in
the second step. One benefit of applying the checklist
(besides the fact that it is the Social Security
Administration's own regulation that it is bound to
follow) is that it helps develop the underlying facts that
will aid both the ALJ and this Court in the subsequent
analysis. The first two checklist factors, for example,
require consideration of the length and nature of the
treatment relationship. The ALJ did not make these
determinations. The ALJ's summary of the medical visits
gives the impression that plaintiff first saw Dr. Flynn on
May 20, 2014. R. 25. But this is contrary to Dr. Flynn's
opinion, which states that he had been treating plaintiff
since 2008 and saw her every month or two since that time. R.
458. That is evidence of a longer and more in depth
relationship. At this point, the Court need not pin down
these details, as this is a task for the ALJ on remand, but
it illustrates one of the benefits of explicitly following
the treating physician rule.

Second,
although the treating physician rule contains specific
analytical steps, it also sets forth the larger principle
that, all things being equal, a treating physician's
opinion deserves some deference. See Koelling v.
Colvin, 2015 WL 6122992, *8 (N.D. Ill. Oct. 16, 2015)
(“within the weighing process, treating physician
opinions receive particular consideration”). For this
reason, the proper application of the treating physician rule
should result in the total rejection (i.e.,
assigning “no weight”) of the treating
physician's opinion only on rare occasions. See
SSR 96-2p (“A finding that a treating source's
medical opinion is not entitled to controlling weight does
not mean that the opinion is rejected. It may still be
entitled to deference and adopted by the
adjudicator.”). Here, although the ALJ nominally gave
Dr. Flynn's opinion “little” weight, the
practical effect was that the ALJ gave it “no”
weight because the ALJ did not credit any aspect of the
opinion.

Third,
consistency is a central principle embodied in the treating
physician rule. The fourth checklist factor explicitly refers
to “the consistency of the opinion with the record as a
whole.” But in addition to assessing the consistency of
an individual opinion, there is a broader notion of
consistency arising from the fact that the ALJ must compare
multiple opinions. As this Court has noted, it is important
that the ALJ employ the “same metrics” and the
“same level of rigor” in evaluating multiple
opinions. Vandiver v. Colvin, 2015 WL 8013554, *3
(N.D. Ill.Dec. 7, 2015) (“the checklist has its
greatest usefulness as a tool for making an apples-to-apples
comparison between opinions.”).

With
these principles in mind, the Court first considers the
ALJ's analysis of Dr. Flynn's opinion. On May 12,
2015, Dr. Flynn completed a two-page form titled
“Physical Residual Function Capacity Medical Source
Statement.” Ex. 10F. He opined (among other things)
that plaintiff had been diagnosed with “chronic back
pain, sciatica, peripheral neuropathy/neuralgia, depression
with anxiety, chronic kidney disease, [and] migraines”;
that she would only be able to sit or stand two hours in a
normal workday; that she would be off-task more than 30% of
the day; and that she would miss five or more days a month.
If accepted, these limitations would prevent plaintiff from
working full-time. The ALJ rejected this opinion based on the
following explanation:

These restrictions, however, are inconsistent with the
objective medical evidence, which does not reveal any
positive straight leg raising, muscle weakness, or issues
with gait or ambulation. Furthermore, the claimant's MRI
of the lumbar spine did not reveal any abnormalities that
would result in the level of functional restrictions that Dr.
Flynn provides in this assessment.

R. 27.

Plaintiff
attacks this explanation on two main grounds. The first is
cherry-picking. Plaintiff asserts that the ALJ's
conclusion about the medical record-i.e. that there
were not “any” supportive findings-was incorrect.
In her two briefs, plaintiff identifies various findings
about muscle weakness and other issues (including limited
grip strength, stiffness, and decreased mobility) that
undermine the ALJ's zero-evidence statement. See
Dkt. #13 at 5-7; Dkt. #15 at 1-2. The Court need not further
analyze these specific findings because it finds that
plaintiff has raised a colorable argument that the ALJ
overlooked this evidence. This conclusion is also indirectly
supported by the Government's brief, which contains a
series of “yes, but” statements in which the
Government concedes that a particular piece of evidence
supports plaintiff but then argues that it is small compared
to other, supposedly stronger evidence. See, e.g.,
Dkt. #14 at 5 (“A physical examination revealed right
paraspinal musculature spasm and tenderness of the sacral
muscles, but her gait was normal and numb muscle
weakness was noted.”) (emphasis added). Unlike the ALJ,
the Government at least explicitly confronted this contrary
evidence. And although the Government's arguments might
prove convincing on remand, they cannot be relied on here
because the ALJ did not make these same arguments. See
Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010)
(“the Chenery doctrine [] forbids an
agency's lawyers to defend the agency's decision on
grounds that the agency itself had not embraced”). As a
result, we are left in doubt as to whether the ALJ considered
this contrary line of evidence that potentially supports Dr.
Flynn's opinions. Thomas v. Colvin, 743 F.3d
1118, 1123 (7th Cir. 2014) (an ALJ may not ignore a line of
evidence contrary to his conclusion).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Even if
the Court were inclined to view the ALJ&#39;s zero-evidence
statement as a rhetorical overreach, the ALJ improperly
&ldquo;played doctor&rdquo; in discussing the objective
medical evidence. See Moon v. Colvin, 763 F.3d 718,
722 (7th Cir. 2014) (ALJs should &ldquo;rely on expert
opinions instead of determining the significance of
particular medical findings themselves&rdquo;). In this case,
as in many disability cases involving spinal-related
impairments, the record contains numerous examination and
diagnostic findings-some negative and some positive-that
collectively create a large pile from which to choose. For
this reason, it is relatively easy for each side-to borrow a
metaphor about legislative history-to pick out their
&ldquo;friends&rdquo; from the crowded record. See Conroy
v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, ...

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